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Upton v. Day & Zimmerman NPS

United States District Court, N.D. Alabama, Southern Division

January 18, 2018




         Michael Upton asserts claims against Day & Zimmerman NPS (“D&Z”) under the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (“ADA”), for disability discrimination (Count II), prohibited medical inquiry (Count III), and retaliation (Count IV).[1] Doc. 1. Presently before the court is Upton's motion for partial summary judgment as to Counts II and III, doc. 51, and D&Z's cross-motion for summary judgment on all claims, doc. 55. Both motions are fully briefed, docs. 51, 56, 59, 61, 62, 63, and ripe for review. For the reasons stated below, Upton's motion is due to be denied, while D&Z's motion is due to be granted fully as to Counts I, III, and IV fully, and solely as to the regarded as claim in Count II.


         Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go “beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual dispute will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         “The standards governing cross-motions for summary judgment are the same, although the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the non-movant.” Lozman v. City of Riviera Beach, 39 F.Supp.3d 1392, 1404 (S.D. Fla. 2014) (citing Shazor v. Professional Transit Management, Ltd., 744 F.3d 948 (6th Cir. 2014)); see also U.S. v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (applying the Rule 56 summary judgment standard where both parties moved for summary judgment). However, “cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” Bricklayers, Masons & Plasterers Int'l Union v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975).


         Upton suffered various injuries in a car accident in 1989 that required ongoing medical treatment. Docs. 51 at 8; 56 at 7-8. In 2007, Upton's primary care physician referred him to Dr. Michael Gibson, who subsequently diagnosed Upton with lumbar radiculopathy, defined as pain in his lower back radiating to both legs. Docs. 51 at 9-10; 56 at 8; 61 at 24-25. Since that time, Upton has taken opiates prescribed by Dr. Gibson, including MS Contin, a long-acting oral form of morphine. Docs. 51 at 5, 9-10; 56 at 8.

         D&Z, the primary maintenance contractor for several Southern Company facilities, employed Upton, a union pipefitter, beginning October 22, 2010. Docs. 51 at 6; 56 at 5, 11. As is customary in the industry, employers hire union pipefitters on a temporary basis and lay them off once a job is completed. Docs. 51 at 5; 56 at 5-6. Upton has had at least seven separate temporary stints for D&Z. Doc. 51 at 5. Upton has self-identified as disabled on the employee information form he submitted at the beginning of each work stint. Id. at 6.

         Certain terms and conditions of Upton's employment are governed by the Powerhouse Maintenance Agreement (“PHMA”) between Upton's union and Alabama Power, a Southern Company subsidiary. Docs. 51 at 5; 56 at 5, 9-10. This includes the requirement that all workers pass a five-panel drug test before working at any power plant, unless they have been tested in the past six months. Docs. 51 at 5; 56 at 6. Each time Upton has taken a drug test, he has tested non-negative for opiates and successfully completed the medical review process to verify his prescriptions are legitimate, including submitting a letter from Dr. Gibson attesting to Upton's ability to work safely while taking the prescription. Docs. 51 at 5-6; 56 at 11.

         In January 2015, Upton's union referred him to D&Z for a job at the Gaston Plant in Wilsonville, Alabama. Docs. 51 at 6; 56 at 12. The sole decisionmaker for employment at Gaston is Howard Humphrey, docs. 51 at 7; 56 at 11, who had previously approved Upton for employment, doc. 56 at 11. For the 2015 referral, in compliance with the PHMA, Upton took a drug screen and submitted the supporting letter from Dr. Gibson.[2] Doc. 51 at 6. In this letter, in addition to verifying the prescription and attesting to Upton's ability to safely work while taking the medication, Dr. Gibson informed D&Z that requiring employees to disclose their medications may violate the ADA. Id. at 6-7. Upton filed this lawsuit alleging violations of the ADA, in that he was not rehired because Humphrey allegedly accessed Upton's drug test results and learned what prescription medications Upton was taking, and in retaliation for the allegedly protected activity of submitting Dr. Gibson's letter.

         III. ANALYSIS

         Before the court are cross-motions for summary judgment. Upton moves partially on Count II (disability discrimination)-specifically on the issues of being an individual with a disability under the actual disability, record of disability, and regarded as theories, and a qualified individual-and fully on Count III (prohibited medical inquiry). D&Z has moved on all counts. The court begins by examining the parties' cross-motions on Counts II and III, then turns to D&Z's motion on Count IV.

         A. Disability Discrimination-Count II

         In Count II, Upton alleges D&Z violated the ADA by refusing to rehire him on the basis of “his previous disclosures of his disability status and his prescriptions for medication, ” “his record of disability, ” or “his actual disability.” Doc. 1 at 10-12. To state a prima facie case of discrimination under the ADA, a plaintiff must show that (1) he is disabled; (2) he is a qualified individual; and (3) he suffered unlawful discrimination because of his disability. Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996). The parties disagree on whether Upton can make these showings, with Upton arguing that the court should grant him summary judgment on the first two prongs, and find as a matter of law that he is a qualified individual with a disability.

         1. Whether Upton is an ...

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